J-A02023-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYRONE JOHNSTON

Appellant No. 3271 EDA 2013

Appeal from the PCRA Order of November 25, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-1300475-2006

BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.: FILED MARCH 20, 2015

Tyrone Johnston appeals from the order of November 25, 2013, 

denying his petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S.A §§ 9541-46. We affirm.

The underlying facts of this case are not in dispute. On February 7, 

2006, Johnston shot and killed Jamel Conner on the 2800 block of 

Kensington Avenue in North Philadelphia. Johnston shot Conner six times in 

the head and chest at close range over a drug dispute. Subsequently, on 

May 15, 2006, Johnston shot Stephanie Labance twice in the head at 2933 

Ruth Street in North Philadelphia. Johnston also killed Labance over a drug 

dispute, using the same gun with which he shot Conner. See PCRA Court 

Opinion (“P.C.O.”), 4/28/2014, at 3-6 (record citations omitted).
J-A02023-15

- 2 -

In the Conner case, Johnston was arrested by warrant and charged on 

June 22, 2006. Johnston subsequently was charged in the Labance case on 

July 14, 2006. On July 13, 2007, the Labance and Conner cases were listed 

together, and, after several continuances, a bench trial commenced on 

February 17, 2009.

On February 26, 2009, following a non-jury trial . . . , [Johnston] 

was found guilty of two counts of murder of the first degree (H1), criminal conspiracy (F-1), and two counts of possessing 

instruments of crime (PIC) (M-1).1 Sentencing was deferred 

until March 4, 2009, on which date [the c]ourt sentenced 

[Johnston] to the mandatory term of life imprisonment2for both 

counts of murder of the first degree.3 On March 12, 2009, 

[Johnston] filed post-sentence motions, which [the c]ourt denied 

on July 8, 2009.

1

In connection with the killing of Jamel Conner (Conner), 

CP-51-CR-0004489-2007, [Johnston] was convicted of 

murder of the first degree, criminal conspiracy, and PIC. 

In connection with the killing of Stephanie Labance 

(Labance), CP-51-CR-1300475-2006, [Johnston] was 

convicted of murder of the first degree and PIC. 

[Johnston] was represented by Steven Laver, Esquire on 

the Conner case, and by Bernard Siegel, Esquire, on the 

Labance case.

2 18 Pa.C.S.A. § 1102(a)(1).

3 As to the conviction for criminal conspiracy in 

connection with the Conner murder, [Johnston] was 

sentenced to a consecutive term of not less than 20 nor 

more than 40 years[’] imprisonment. As to the conviction 

for PIC in connection with the Conner murder, [Johnston] 

was sentenced to a consecutive term of not less than twoand-a-half years nor more than five years[’] imprisonment. 

As to the conviction for murder of the first degree in 

connection with the Labance murder, [Johnston] was 

sentenced to a consecutive term of life imprisonment. And 

finally, as to the conviction for PIC in connection with the 

Labance murder, [Johnston] was sentenced to a 
J-A02023-15

- 3 -

consecutive term of not less than two-and-a-half nor more 

than five years[’] imprisonment.

On July 20, 2009, [Johnston] filed a timely notice of appeal as to 

both cases.4 On December 9, 2009, [the trial c]ourt filed an 

opinion pursuant to Pa.R.A.P. 1925(a) . . . .5 Thereafter, 

[Johnston’s] counsel failed to comply with the briefing schedule 

as set forth by the Superior Court. On June 17, 2010, the 

Superior Court dismissed the appeal arising out of the Labance 

murder. On July 13, 2010, the Superior Court dismissed the 

appeal arising out of the Conner murder. [Johnston’s] counsel 

petitioned the Superior Court to reinstate both appeals. On July 

14, 2010, the Superior Court reinstated the appeal arising out of 

the Labance murder; on August 11, 2010, the Superior Court 

reinstated the appeal arising out of the Conner murder. 

[Johnston’s] counsel submitted briefs in connection with the 

Labance appeal, allowing that case to progress forward; on 

March 20, 2011, the Superior Court affirmed [Johnston’s] 

judgments of sentence on that case. On April 11, 2011, 

[Johnston] petitioned our Supreme Court for allowance of 

appeal, which was denied on September 20, 2011.

4 The Superior Court docket number assigned to the case 

associated with the Conner murder was 2105 EDA 2009. 

The Superior Court docket number assigned to the case 

associated with the Labance murder was 2116 EDA 2009.

5 This [Pa.R.A.P.] 1925(a) Opinion addressed issues 

raised with respect to both the Conner and Labance 

appeals—2105 EDA 2009 and 2116 EDA 2009.

Whereas the Labance appeal reached our Commonwealth’s 

appellate courts on its merits, the Conner appeal was again 

dismissed by the Superior Court on September 22, 2010 for 

counsel’s failure to file a brief. On November 22, 2010, 

[Johnston] filed a pro se petition pursuant to the Post[ 

]Conviction Relief Act (PCRA)6seeking reinstatement of his direct 

appeal rights on the Conner case. Due to an administrative 

error, the Clerk of Courts failed to appoint an attorney to 

represent [Johnston] on collateral attack for more than two 

years.7 On July 31, 2013, in response to an inquiry in that Court 

by [Johnston], our Supreme Court issued an order, directing [the 

PCRA c]ourt to resolve [Johnston’s] pending PCRA petition within 

90 days of the date of the order. On August 6, 2013, John P. 

Cotter, Esquire, having been appointed, entered his appearance 
J-A02023-15

- 4 -

on [Johnston’s] behalf. On September 3, 2013, he filed an 

amended petition, to which the Commonwealth responded on 

September 27, 2013. In his amended petition, [Johnston] raised 

two issues: (1) [Johnston] requested reinstatement of [his] 

direct appeal rights on the Conner case, and (2) [Johnston] 

claimed that [his] trial counsel was ineffective for failing to 

litigate a speedy trial motion on the Labance case. On October 

4, 2013, without objection from the Commonwealth, [the PCRA 

c]ourt reinstated [Johnston’s] appellate rights on the Conner 

case nunc pro tunc. On November 25, 2013, [the PCRA c]ourt 

held an evidentiary hearing pursuant to Pa.R.Crim.P. 908 . . . to 

address [Johnston’s] claim that trial counsel was ineffective for 

failing to litigate a speedy trial motion on the Labance case. At 

the conclusion of the [Rule] 908 Hearing, [the PCRA c]ourt 

denied at dismissed [Johnston’s] petition.

6 42 Pa.C.S. §§ 9541-[]46.

7 Ordinarily, the Clerk of Courts receives PCRA petitions 

and alerts chambers when a new PCRA petition has been 

filed. In this situation, [the PCRA c]ourt first became 

aware that [Johnston] had filed his November 22, 2010 

petition upon receiving our Supreme Court’s July 31, 2013 

order. 

Id. at 1-3 (record citations omitted). On July 27, 2013, Johnston timely 

appealed the denial of his PCRA petition as to his ineffective assistance of 

counsel claim.1 On December 9, 2013, pursuant to the PCRA court’s order, 

Johnston filed a statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). The PCRA court entered its Pa.R.A.P. 1925(a) opinion on 

April 28, 2014.

____________________________________________

1

Johnston filed a separate appeal nunc pro tunc from the judgment of 

sentence in the Conner case, which we address at Docket No. 2929 EDA 

2013.
J-A02023-15

- 5 -

In the instant appeal from the court’s denial in part of his PCRA 

petition, Johnston raises one question for our review: “Was trial defense 

counsel ineffective in failing to file and litigate a pre-trial motion to dismiss 

the charges with prejudice for lack of speedy trial?” Johnston’s Brief at 2.

Specifically, Johnston argues that the PCRA court erred in failing to 

grant relief where counsel failed to litigate a speedy trial claim, despite “524 

days of unexcused delay in bringing the case to trial.” Id. at 5. We 

disagree.

Our standard of review on appeal from an order denying a PCRA 

petition is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. See Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA court’s findings will not 

be disturbed unless there is no support for them in the certified record. See 

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). 

“Further, the PCRA court’s credibility determinations are binding on this 

Court, where there is record support for those determinations.” 

Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citation 

omitted).

The governing legal standard of review of ineffective assistance of 

counsel claims is well-settled:

[C]ounsel is presumed effective, and to rebut that presumption, 

the PCRA petitioner must demonstrate that counsel’s 

performance was deficient and that such deficiency prejudiced 

him. Strickland v. Washington, 466 U.S. 668 (1984). This 

Court has described the Strickland standard as tripartite by 
J-A02023-15

- 6 -

dividing the performance element into two distinct components. 

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987). 

Accordingly, to prove [trial] counsel ineffective, the petitioner 

must demonstrate that: (1) the underlying legal issue has 

arguable merit; (2) counsel’s actions lacked an objective 

reasonable basis; and (3) the petitioner was prejudiced by 

counsel’s act or omission. Id. A claim of ineffectiveness will be 

denied if the petitioner’s evidence fails to satisfy any one of 

these prongs.

Commonwealth v. Busanet, 54 A.3d 35, 45 (Pa. 2012) (citations 

formatted).

We review Johnston’s ineffectiveness claim by proceeding to the 

arguable merit prong of his argument. We consider Johnston’s underlying 

Rule 600 claim according to the following principles:

In evaluating Rule [600] issues, our standard of review of a trial 

court’s decision is whether the trial court abused its discretion. 

Judicial discretion requires action in conformity with law, upon 

facts and circumstances judicially before the court, after hearing 

and due consideration. An abuse of discretion is not merely an 

error of judgment, but if in reaching a conclusion the law is 

overridden or misapplied or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or ill 

will, as shown by the evidence or the record, discretion is 

abused.

The proper scope of review is limited to the evidence on the 

record of the Rule [600] evidentiary hearing, and the findings of 

the [trial] court. An appellate court must view the facts in the 

light most favorable to the prevailing party.

Additionally, when considering the trial court’s ruling, this Court 

is not permitted to ignore the dual purpose behind Rule [600]. 

Rule [600] serves two equally important functions: (1) the 

protection of the accused’s speedy trial rights, and (2) the 

protection of society. In determining whether an accused’s right 

to a speedy trial has been violated, consideration must be given 

to society’s right to effective prosecution of criminal cases, both 

to restrain those guilty of crime and to deter those 
J-A02023-15

- 7 -

contemplating it. However, the administrative mandate of Rule 

[600] was not designed to insulate the criminally accused from 

good faith prosecution delayed through no fault of the 

Commonwealth.

So long as there has been no misconduct on the part of the 

Commonwealth in an effort to evade the fundamental speedy 

trial rights of an accused, Rule [600] must be construed in a 

manner consistent with society’s right to punish and deter crime. 

In considering [these] matters . . . , courts must carefully factor 

into the ultimate equation not only the prerogatives of the 

individual accused, but the collective right of the community to 

vigorous law enforcement as well. 

Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa. Super. 2007) 

(citation omitted). 

Rule 600 provides, in pertinent part:

(A) Commencement of Trial; Time for Trial

* * *

(2) Trial shall commence within the following time periods.

(a) Trial in a court case in which a written 

complaint is filed against the defendant shall commence 

within 365 days from the date on which the complaint is 

filed.

* * *

(C) Computation of Time

(1) For purposes of paragraph (A), periods of delay at any 

stage of the proceedings caused by the Commonwealth when the 

Commonwealth has failed to exercise due diligence shall be 

included in the computation of the time within which trial must 

commence. Any other periods of delay shall be excluded from 

the computation.

* * *
J-A02023-15

- 8 -

(3)(a) When a judge or issuing authority grants or denies a 

continuance:

(i) the issuing authority shall record the identity 

of the party requesting the continuance and the reasons 

for granting or denying the continuance; and

(ii) the judge shall record the identity of the party 

requesting the continuance and the reasons for granting 

or denying the continuance. The judge also shall record 

to which party the period of delay caused by the 

continuance shall be attributed, and whether the time 

will be included in or excluded from the computation of 

the time within which trial must commence in 

accordance with this rule.

(b) The determination of the judge or issuing authority 

is subject to review as provided in paragraph (D)(3).

(D) Remedies

(1) When a defendant has not been brought to trial within 

the time periods set forth in paragraph (A), at any time before 

trial, the defendant’s attorney, or the defendant if 

unrepresented, may file a written motion requesting that the 

charges be dismissed with prejudice on the ground that this rule 

has been violated. A copy of the motion shall be served on the 

attorney for the Commonwealth concurrently with filing. The 

judge shall conduct a hearing on the motion. 

(2) Except in cases in which the defendant is not entitled 

to release on bail as provided by law, when a defendant is held 

in pretrial incarceration beyond the time set forth in paragraph 

(B), at any time before trial, the defendant’s attorney, or the 

defendant if unrepresented, may file a written motion requesting 

that the defendant be released immediately on nominal bail 

subject to any nonmonetary conditions of bail imposed by the 

court as permitted by law. A copy of the motion shall be served 

on the attorney for the Commonwealth concurrently with filing. 

The judge shall conduct a hearing on the motion.

(3) Any requests for review of the determination in 

paragraph (C)(3) shall be raised in a motion or answer filed 

pursuant to paragraph (D)(1) or paragraph (D)(2).

Pa.R.Crim.P. 600(A), (C)-(D).
J-A02023-15

- 9 -

To summarize, the courts of this Commonwealth employ three 

steps . . . in determining whether Rule 600 requires dismissal of 

charges against a defendant. First, Rule 600(A) provides the 

mechanical run date. Second, we determine whether any 

excludable time exists pursuant to Rule 600(C). We add the 

amount of excludable time, if any, to the mechanical run date to 

arrive at an adjusted run date. 

If the trial takes place after the adjusted run date, we apply the 

due diligence analysis set forth in Rule 600([D]). As we have 

explained, Rule 600[] encompasses a wide variety of 

circumstances under which a period of delay was outside the 

control of the Commonwealth and not the result of the 

Commonwealth’s lack of diligence. Any such period of delay 

results in an extension of the run date. Addition of any Rule 

600[] extensions to the adjusted run date produces the final 

Rule 600 run date. If the Commonwealth does not bring the 

defendant to trial on or before the final run date, the trial court 

must dismiss the charges.

Ramos, 936 A.2d at 1103 (footnote and citations omitted). “Due diligence 

is a fact-specific concept that must be determined on a case-by-case basis. 

Due diligence does not require perfect vigilance and punctilious care, but 

rather a showing by the Commonwealth that a reasonable effort has been 

put forth.” Id. at 1102 (citation and emphasis omitted). 

Because Johnston’s trial included the joinder of two separate criminal 

charges, there are two adjusted run dates to consider. First, the complaint 

charging Johnston with Conner’s murder was filed on June 22, 2006, 

resulting in a mechanical run date of June 22, 2007. See Pa.R.Crim.P. 

600(A); Ramos, 936 A.2d at 1103. Pursuant to the municipal docket in the 

Conner case, on June 28, 2006, the court continued proceedings until July 

12, 2006, for appointment of private counsel due to Johnston’s conflict with 

the Public Defender, resulting in fourteen days’ excusable time. Thereafter, 
J-A02023-15

- 10 -

Johnston’s preliminary hearing was continued until October 3, 2006, with the 

court ruling the time excusable from September 13, 2006, to October 3, or 

twenty days. Therefore, the adjusted run date for the Conner case was July 

26, 2007. 

In the Labance case, the municipal docket indicates that Johnston was 

charged on July 14, 2006 for a mechanical run date of July 16, 2007.2 The 

docket reflects one excusable delay, when proceedings were continued from 

July 17, 2006 to August 7, 2006 for appointment of private counsel, 

resulting in twenty-two days’ excusable time. Therefore, the adjusted run 

date for the Labance case was August 7, 2007. 

Because trial, which commenced on February 17, 2009, took place 

after both adjusted run dates, we proceed to the due diligence analysis set 

forth in Rule 600(D). See Ramos, 936 A.2d at 1103.

The two complaints were consolidated after a hearing on July 13, 

2007, and initially listed for trial on August 6, 2007, which was the first 

available trial date, resulting in twenty-one days excusable delay attributable 

to the court. See Notes of Testimony (“N.T.”), 11/25/2013, at 25; see also 

Commonwealth v. Jones, 886 A.2d 689, 701-02 (Pa. Super. 2005) 

(holding that period between defendant’s arraignment and scheduled trial 

____________________________________________

2

July 14, 2007 fell on a Saturday.
J-A02023-15

- 11 -

was excusable because the trial court determined the date assigned for trial 

was the earliest possible trial date). 

Defense counsel requested a continuance and the next available trial 

date was May 5, 2008, resulting in 273 days’ excludable delay attributable to 

Johnston. See N.T., 11/25/2013, at 34; see also Commonwealth v. 

Aaron, 804 A.2d 39, 43 (Pa. Super. 2002) (en banc) (“Any delay caused by 

the need to reschedule a trial because of a continuance attributable to the 

defense constitutes excludable time, even if the defendant was prepared to 

go to trial at an earlier date.”). 

On April 23, 2008, the court rescheduled trial due to the Honorable M. 

Teresa Sarmina needing to undergo surgery and the case was continued 

until November 10, 2008, resulting in 189 days’ excusable delay attributable 

to the court. See N.T., 11/25/2013, at 35; see also Commonwealth v. 

Preston, 904 A.2d 1, 14 (Pa. Super. 2006) (en banc), (“It is longestablished that judicial delay may serve as a basis for extending the period 

of time within which the Commonwealth may commence trial[.]”). Due to 

the unavailability of the defense mitigation specialist on that date, trial was 

rescheduled for November 24, 2008, with evidence to begin on December 1, 

2008, which caused 14 days’ excludable delay attributable to Johnston. See 

N.T., 11/25/2013, at 35; see also Aaron, 804 A.2d at 43. 

However, due to a scheduling error, the court previously had a 

different trial scheduled on that date, and continued Johnston’s trial to the 

next available trial date, on February 17, 2009, resulting in eighty-five days’ 
J-A02023-15

- 12 -

excusable delay attributable to the court. See N.T., 11/25/2013, at 51-52; 

see also Jones, 886 A.2d at 701-02. Ultimately, trial commenced on 

February 17, 2009.

After careful review, we conclude that Johnston is responsible for 287 

days of excludable delay and the trial court is responsible for 295 days of 

excusable delay, for a total of 582 days of delay not attributable to the 

Commonwealth. Therefore, the 573-day delay between the adjusted run 

date of July 25, 2007 for the murder of Jamel Connel and the date on which 

trial commenced, February 17, 2009, and the 561-day delay from the 

adjusted run date of August 7, 2007 for the murder of Stephanie Labance is 

excusable pursuant to Rule 600, and not a failure of due diligence on the 

part of the Commonwealth. See Pa.R.Crim.P. 600(C)(1); Ramos, 936 A.2d 

at 1103. 

There is no merit to Johnston’s underlying Rule 600 claim. Busanet, 

54 A.3d at 45. Therefore, trial counsel was not ineffective for failing to 

litigate a claim that would not succeed. See Commonwealth v. Holloway, 

739 A.2d 1039, 1044 (Pa. 1999) (holding that counsel cannot be considered 

ineffective for failing to raise a claim that lacks merit). Accordingly, the 

record supports the PCRA court’s denial of Johnston’s ineffective assistance 

of counsel motion on the basis of a failure to litigate a Rule 600 claim. See 

Ragan, 923 A.2d at 1170. Johnston’s issue does not merit relief.

Order affirmed.
J-A02023-15

- 13 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2015